Aadhaar: ‘A programme designed to tether every citizen to an electronic leash’

Senior Advocate Shyam Divan submitted before the 5-Judge Constitution Bench that Aadhaar “alters the relationship between the citizen and the State” while diminishing the status of the citizen

Photo courtesy: social media
Photo courtesy: social media
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NH Political Bureau

Senior advocate Shyam Divan on Wednesday submitted before the Supreme Court that Aadhaar “seeks to tether every resident of India to an electronic leash”. As per the opening statement on behalf of the petitioners as handed over in Court on Wednesday, Mr Divan explains, “This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behavior. Over time, the profiling enables the State to stifle dissent and influence political decision making.”

Mr Divan has further submitted that Aadhaar “alters the relationship between the citizen and the State”, while diminishing the status of the citizen. All rights, he asserts, have now been made conditional on a “compulsory barter”, averring,
“The barter compels the citizen to give up her biometrics ‘voluntarily’, allow her biometrics and demographic information to be stored by the State and private operators and then used for a process termed ‘authentication’. The State issues an Aadhaar number and then requires the number to be embedded across service providers and agencies — unless the number is seeded in databases of the service provider, the citizen is denied access to these most essential facilities. Inalienable and natural rights are dependent on a compulsory exaction....”

The submissions have been made before the 5-Judge Constitution Bench comprising CJI Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan.

The State, he says, has been handed over a “switch by which it can cause the civil death of an individual”. He contends, “Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual. Could it ever be envisaged that under this Constitution which ‘We the People’ have fashioned after a long freedom struggle steeped in sacrifice, the State can arrogate to itself so much power that it can ‘...‘extinguish’ a citizen or be willfully blind with respect to a citizen who would like to identify himself in a manner other than Aadhaar?”

Even as the government mounted a spirited defence of Aadhaar with UIDAI releasing a full page advertisement this week followed by articles in leading newspapers by Nandan Nilekani and TRAI chairman and former UIDAI’s Mission Director RS Sharma during the past few days to debunk apprehensions over Aadhaar, petitioners also seemed prepared what they describe as UIDAI’s ‘bluff’.

Arguing in the court, Divan pointed out, “if the Aadhaar programme is allowed to continue unimpeded, it will hollow out the Constitution. Through a succession of marketing strategies and smoke and mirrors, the government had rolled out a programme designed to tether every citizen to an electronic leash. As the Aadhaar programme expands, the extent of profiling will expand.”

Stating the various PILs filed against the Aadhaar scheme, including a petition filed by UIDAI itself in 2014 against a Bombay HC order that had directed it to disclose biometrics in a criminal case, Divan informed the court, “The Aadhaar Act was passed in 2016. In January 2017, notifications were passed making Aadhaar mandatory for multiple services.”

“The Income Tax Act was amended and even the phone numbers are required to be linked. Aadhaar has been made mandatory for opening bank accounts, holding insurance policies, making transactions, mutual funds. Effectively today, you cannot live as a citizen of India without an Aadhaar.”

Arguing that the main issue is the departure from a ‘deterministic system’ to a ‘probabilistic system’, Divan said, “They (UIDAI) have a probabilistic system. UIDAI captures all the ten fingerprints of the individual, a facial photograph, and the two irises. This data is stored. They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number - how many of those hundred points should match? If the number is set at 100/100, it will never work. So UIDAI has to make a value judgment. It can't be too high, it can't be too low. So, you're departing from a deterministic system from a probabilistic system. The issue is this.

“If I have certain rights, then how can my enjoyment of those rights be made probabilistic? Where is the question of making something I am entitled to dependent upon probability,” he asked the court.

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